Re-launched in April 2010 after 12 months’ absence from the internet, this Legal Commentary on issues affecting Town & Country Planning offers comment on recent changes in planning legislation and judicial rulings in planning cases, as well as some thoughts on other issues arising in the course of my work as a Planning Lawyer. It is likely to be of interest mainly to fellow planning professionals, but all are welcome to read it. The views expressed are my own and nobody else’s.

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Friday, 28 December 2012

Validating and registering planning applications

The changes I mentioned in my last post [Rules relaxed for planning applications: Friday, 21 December 2012] prompted an anonymous contributor to post a comment which deserves a post to itself, as it gives rise to a number of further thoughts on this topic.

My correspondent picked up on my comment that the new sub-clause in section 62 (which will provide that LPA information requirements must be reasonable having regard, in particular, to the nature and scale of the proposed development, and that the LPA may require particulars of, or evidence about, a matter only if it is reasonable to think that the matter will be a material consideration in the determination of the application) will not entirely eliminate the problems arising from local validation lists. My correspondent suggests that these changes will do nothing whatsoever even to address the 'local list' and 'validation' problems. On reflection, I fear this may be right.

Anon suggests that to LPAs these 'tools' are not genuinely anything to do with development control (as in controlling actual outcomes) but about controlling the flow rate of applications and thus workload. That is to say, they are about serving the interests of the supply side not the demand side - all in the name of the 'public interest', of course. Half of the information demanded is not understood; the other half they don't read anyway. [I can only add “Hear! Hear!” to that.]

My correspondent has observed with increasing dismay the decay of LPA's DC operations over the last 30 years. There are still some very good people in planning departments who operate beyond the tick-box culture (and who are a pleasure to deal with) but, across the board in general, the silo mentality has triumphed - the pesky public have become the enemy whose unreasonable aspirations must be resisted and re-moulded to fit the pre-determined defaults prescribed.

Let's not forget (Anon continues) that those defaults have been developed and refined over more than 60 years into the current codes guiding what is and what is not acceptable development: deviation is allowed, but only when it fits the discretionary tastes and preferences of the decision maker. The applied defaults will not be given up easily despite the compelling need, for example, to improve radically, not marginally, the energy efficiency of existing buildings. These refined defaults are not merely some part of the DC system, they are the system. Changing those defaults amounts effectively to destroying the system as we know it from that first seminar at college to the last day at work. It is to tear up the very essence of itself. It would be like the legal field throwing out all case law and starting again.

What has been subordinated, if not lost altogether, my correspondent suggests, is respect for that most basic of all canons of development control: the presumption in favour of development. Instead, everything has to be justified by the applicant: Design & Access Statements - which go unread anyway; plus all the information set out in local lists etc. My correspondent doubts whether LPAs will have much regard for the requirement of reasonableness, even when it is enshrined in the new sub-section 62(4A) which I cited.

All 'requirements' for a valid application beyond a simple form should be abolished, including application fees, my correspondent proposes. Development control is necessary but not sufficient in its current form to be a system fit for purpose; it is far too focused on stopping, instead of enabling development and too often hijacked for invalid reasons and agendas. At this point my correspondent ended their rant [their own word] and wished us all a Merry Xmas.

My reason for devoting an entire post to this anonymous comment is that there is much in what my correspondent writes with which I agree. The changes to the DMPO and the new sub-section in section 62 may not be sufficient to change the mind-set which is now deeply entrenched in planning departments around the country that planning applications should not be registered until every last dot and comma is in place, as required by the local validation check-list. I even had a refusal by one LPA to register an application for an LDC because I had not sent in a copy of the full planning application check-list itself, duly ticked to show which items were included, despite my having pointed out that only one single item in the list (viz: a site plan) was actually required in that case, and it should have been obvious even to the dimmest junior admin assistant that this item had indeed accompanied the application. As my anonymous contributor suggests, this nonsense has a lot more to do with controlling workflow than any genuine need for the information demanded, much of which is not read anyway in most cases.

So I entirely agree that the only sure way of putting an end to this nonsense is to abolish local validation checklists altogether. LPAs could still request additional information after the application is registered, if they really need it, as they were entitled to do under an earlier version of section 62, when the applicant had the option of appealing against this under section 78 and in effect running an appeal against deemed refusal by reason of the LPA’s failure to determine the application. Design & Access Statements are equally unnecessary; we did without them for over 50 years and still managed to have a reasonably reliable and efficient development control system. There is also a respectable case to be made against the payment of application fees (and I have put this forward myself in the past), but that argument will have to await another post.

I was recently discussing the development management process with a planning consultant with whom I have done a great deal of work over the years. We rapidly came to the conclusion that the planning system could be immeasurably improved simply by repealing all the amending legislation (both primary and subordinate) introduced in the past 20 years or so, starting with what used to be section 54A of the 1990 Act (now section 38(6) of the 2004 Act). Every change since then, both to the development plan system and to the development management process has been downright damaging to the system and unhelpful to its users. If the government was really serious about sorting out the bureaucratic log-jams caused by the planning system (instead of indulging, like governments of all political persuasions, in empty gesture politics) they would take a radical initiative on this scale, rather than tinkering yet again with the details.

5 comments:

Chris Weetman left a comment on 1 January that seems somehow to have got lost in the system. He wrote:

“I fully agree with the criticism of the local lists. I recently fell foul of Hyndburn BC’s local list requirement that all paper applications be supported with an electronic copy! Hardly a pre-requisite to determine the application and, as far as I’m concerned unlawful.”

I can only add that I am sure Chris is right about the legality of this demand. It is high time the government got a proper grip on this and put a stop to all this nonsense.

Hear, hear - another excellent post. Repealing the legislation would be much better than adding tiers of extra legislation on top of the mess there is already. Giving the power of validation solely to local authorities was a huge error; compounded by the ludicrous Poostchi judgment. There has to be a right of appeal. So much of the stuuf that lpas ask for is not NECESSARY at all.

Anon here. You've hit the nail on the head in your final para. Ahh... s.54A. The addition of the word "plan" after the words "The presumption is always in favour of the development". Is there any other instance of 4 letters having such wide ranging, and surely unintentional, consequences.

Presumtion in favour of development is every bit as important in development control as the presumtion of innocence (until proven guilty) is in the criminal juctice system.

And we don't have presumption in favour: it is presumed against across the piece, from the public, the press, the planners et al. And that is something we haven't learnt to deal with yet.....I could go on but not now.

Many local authorities now 'require' a Bat Emergence Study as a condition of validation. I've been mulling this one over and, in this instance, I think it's right that it should be a condition of validation.

Emergence Studies can only be undertaken at certain times of the year so, if one was not available at the time the application was made, it seems unlikely that it could be provided within the timeframe of the application.

One caveat to this is that bat boxes are probably cheaper than emergence studies. I don't know much about bat ecology but it seems to me that these authorities could just make the provision of bat boxes a condition of planning consent, and dispense with the emergence study altogether. I doubt that the bats would object.

Passerby has touched on a very sinister part of validation in the area I operate in, that is all applications are being held up under the guise that a bat report is required, even if they fall outside of the LPAs criteria requiring one. This is purely and simply workflow management, holding all applications up at registration so case officers (overworked, underpaid and fewer of them in a more stressful than ever environment) can concentrate on the applications that actually managed to be registered despite many other local validation checklist requirements contained in a 136 page document!

Gone are the days of attaching a condition and leaving this to primary legislation, this is impacting upon the smallest of householder extensions making a mockery of reasonableness and presumption in favour of development etc.